WIRTW #208 (the “manners” edition)

Next week, my daughter’s kindergarten class will hold its second “manners lunch.” It is a formal lunch, with formal place settings, at which the children learn proper table manners. I hope that she takes these manners with her for the rest of her life. Lately, however, I’ve been reminded that not everyone exhibits proper manners. As a courtesy to my opposing counsel in a case, I notified him that I would be bringing a college student, shadowing at my firm, to an upcoming pretrial conference. Believe it or not, he objected:

Jon:

We do not agree with your intention to bring an outsider to the status conference tomorrow. The last thing we need is a distraction, especially since we are only 30 days from trial and the parties need to conduct candid discussions concerning this matter. Only trial counsel and parties should be at the conference.

Regards,

Am I off my rocker for being upset about this discourtesy? Does anyone see any harm in a college student, wanting to learn a little about what a litigator does, sitting quietly in a federal courthouse conference room observing a pretrial?

Anyhow, here’s what I read this week:

Discrimination

• God Has No Place in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs
• Can ADA-disabled employees be required to work overtime? – from Eric Meyer’s The Employer Handbook Blog
• Disability Discrimination Law Is a Mess in More Than Ohio – from Michael Fox’s Jottings By An Employer’s Lawyer
• “But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations – from Warren & Hays Employment Law Blog
• For Many, “It’s That Time of Year”: Affirmative Action Plan (AAP) Revision – from Employer Law Report
• Will I Be Taxed on My Employment Law Settlement? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Too Smart to Hire? – from Phil Miles’s Lawffice Space
• Papa John’s Employee Calls Woman “Lady Chinky Eyes” on Receipt – from ABC News

Social Media & Workplace Technology

• Create a Social Media Policy to Protect Your Business and Employer Brand – from Workplace Insights
• 7 signs we’re living in the post-privacy era – from MSNBC’s Techolog
• Learn How to Gather Social Media Evidence That Holds Up in Court – from i-Sight Investigation Software Blog
• When an Employer Posts to Employee’s Facebook and Twitter Accounts, Bad Things Happen – from Molly DiBianca’s Delaware Employment Law Blog
• Top Ten Social Media Pitfalls to Watch out For – from Meaghan Edelstein at Social Axcess
• Do Active Social Media Users Make Less Ethical Employees? – from Workplace Diva

HR & Employee Relations

• Hiring is NOT an Impulse, It Is an Investment – from Mike Haberman’s Omega HR Solutions
• Pepsi and the Art of Criminal Background Checks – from The HR Capitalist, Kris Dunn
• Pepsi “Popped” for Using Criminal Background Checks – from Texas Employer Handbook
• Pepsi Settles with the EEOC for Background Screening Practices – from Nick Fishman at the employeescreenIQ Blog
• 2012 Human Resources Updates: What Employers Need to Know – from CPEhr
• Why Mitt Romney likes to fire people – from Evil HR Lady, Suzanne Lucas
• 7 Things Your Employees Will Never Tell You – from Inc. Magazine
• Employers close door on smokers – from USA Today
• After Ohio Jury Finds Trade Secret Misappropriation But Awards Zero Damages, Trial Judge Enters Injunction Order But Sets Royalty Payment As Alternative – from Trading Secrets

Wage & Hour

• 9 Secrets For Coordinating Leave Under the FMLA and ADA – from SmartHR
• Expired FMLA Forms OK for Now – from Human Resources News
• Mandatory paid sick leave: a basic right? – from Employment Law Bits
• What to Expect When You’re Expecting the Department of Labor – from Dan Schwartz’s Connecticut Employment Law Blog
• What Are Hours Worked Under the Fair Labor Standards Act (FLSA)? – from Minnesota Employer

Labor Relations

• New NLRB Officially Here – from Workplace Prof Blog
• Potty Mouth Employee Loses Protection – from Labor & Employment Law Perspectives

Supreme Court finds religion, dismisses discrimination lawsuit

Any decision issued by the Supreme Court in an employment case is newsworthy. Thus, even though Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC [pdf] concerns the viability and applicability of the narrow ministerial exception under Title VII, it is still worthy of discussion.

Hosanna-Tabor employed Cheryl Perich as an elementary teacher. She started her employment as a “lay” teacher, and later received her “diploma of vocation” as a commissioned minister “called” by God. As a teacher, she spent approximately 45 minutes per day teaching religious studies, and the rest teaching secular subjects. Hosanna-Tabor terminated her employment after she began suffering from narcolepsy and threatening to sue for discrimination. The EEOC sued on her behalf under the ADA.

Last year, the 6th Circuit permitted Perich to continue with her lawsuit, finding dispositive the fact her primary job functions were secular, not religious. The Supreme Court unanimously disagreed, recognized that a constitutional ministerial exception exists under Title VII, and that because Perich was a religious employee she could not sue for discriminatory termination.

Other bloggers, who got to this case before me, have admirably recapped the Court’s opinion:

• Supreme Court recognizes “ministerial exception” to employment law protections – from Adam Bonin at Daily Kos
• Just In: SCOTUS Rules 1st Amendment Bars Minister's Discrimination Claim – from Phil Miles’s Lawffice Space
• Ministerial exception bars minister's termination suit against church – from LawMemo Employment Law Blog
• Opinion recap: A solid “ministerial exception” – from SCOTUSblog
• BREAKING: U.S. Supreme Court Supports Fairly Broad “Ministerial Exception” to Anti-Discrimination Laws – from Dan Schwartz’s Connecticut Employment Law Blog
• SCOTUS Upholds and Applies Ministerial Exception – from Workplace Prof Blog
• Ministerial Exception to Employment Discrimination Laws Upheld by Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. – from George’s Employment Blawg
• First Supreme Court Employment Decision of 2012 – from Manpower Employment Blawg

Instead of retreading their ground, I thought I’d focus on what this case means going forward. Chief Justice Roberts, writing for the majority, made it clear that this case only addressed an employment discrimination claim, and not other possible claims a “minister” might bring against a religious institution:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

***

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Wage and hour claims? A church employee fired after being wrongly accused of molesting a child? Given the Court’s reliance on the right of a church, conferred by the Constitution, to “control … the selection of those who will personify its beliefs,” it will be hard to imagine a different result in future cases.

Statistics show that lactation breaks are not a workplace problem

Before you read further, make sure you are sitting down, and that there is nothing blunt nearby for you to bump your head on if you pass out from the shock. Okay, here we go. According to the Huffington Post, since Obamacare mandated that employers provide space in the workplace for mothers to lactate, the Department of Labor has cited a whopping 23 companies for not providing adequate lactation breaks or spaces.

According to the U.S. Census Bureau’s latest statistics, there are 5,767,306 American employers, and yet only 23 have been cited for a violation of this mandate. In other words, the Department of Labor has cited .0004% of all American employers. If we only consider employers with 20 or more employees, the DOL has cited .0038%—still an infinitesimally small number. If we only consider the largest of employers—those with 100 or more employees—the percentage of citations drops to a still-miniscule .023%.

What does this mean? Either that the lactation mandate is not yet widely known, and as public knowledge catches up with the law’s requirements complaints (and citations) will rise. Or, the lack of lactation space in American workplaces is a myth that does not need need a legislative solution.

Are there employers that violate women’s rights (already protected by Title VII) to lactate in the workplace? Absolutely. Do enough trample these rights such that we need legislation to address this issues? Likely not.

[Hat tip: ABA Journal]

Is the NLRB backing off its position on social media as protected, concerted activity?

A quartet of advice memos released by the NLRB’s Office of the General Counsel over the past weeks suggests that the NLRB may be backing of its extreme protections of employee social media posts as protected, concerted activity.

• In Children’s National Medical Center [pdf], the General Counsel recommended the dismissal of a charge brought by a respiratory therapist terminated for updating her Facebook status during an ambulance ride to threaten a co-worker who was committing the cardinal sin of sucking on her teeth:

“[T]here is no evidence to establish concert. The Charging Party did not discuss her Facebook post with any of her fellow employees, and none of her coworkers responded to the posts…. The Charging Party was merely airing a personal complaint about something that had happened on her shift.”

• In TAW Inc. [pdf], the General Counsel recommended the dismissal of a charge brought by an accountant terminated for refusing to remove a Facebook post which suggested that her employer was engaged in fraudulent accounting practices:

“Even if the Charging Party initially posted the comment in furtherance of alleged concerted activity …, her refusal to remove the comment after the April 18 meeting with the outside auditor was not protected…. [H]er comment suggesting that the Employer was engaged in fraud was false and, after April 18, she knew it was false. Her insistence on retaining the post after knowing it was false is not entitled to protection under the Act.”

• In Copiah Bank [pdf], the General Counsel recommended the dismissal of a charge brought by a bank teller terminated for off-duty Facebook posts complaining that employees at another branch had “narced” on her:

“The Charging Party did not post her comment on her Facebook page in furtherance of concerted activity for mutual aid or protection. The Charging Party admits that that she was not speaking on behalf of any other employees, nor is there evidence that that she was looking to group action when she posted her comments on Facebook.”

• In Intermountain Specialized Abuse Treatment Center [pdf], the General Counsel recommended the dismissal of a charge brought by a therapist who took to her Facebook wall to complain about staff meetings, including at least one interaction with a co-worker during which they agreed to use Facebook to “complain about work.”:

“The Charging Party’s Facebook posting was merely an expression of an individual gripe about … a staff meeting that affected only the Charging Party – her removal as the facilitator of her victims group. The posting contained no language suggesting that she sought to initiate or induce co-workers to engage in group action. And the only co-worker who commented in response to the posting stated that he did not think that the Charging Party’s post was an attempt to change anything at work.”

These G.C. memos suggest, as I suggested almost a year ago, that the sky may not be falling in regards to social media and the NLRB. Children’s National, TAW, and Copiah Bank are reasoned opinions on lone-wolf employees who took to social media to air gripes about work, or, in the case of Children’s National, to threaten a co-worker.

Intermountain, though, may have wider implications. One of my key concerns about the NLRB’s foray in regulating workplace social media is that by its very nature, social media is concerted, i.e., does a co-worker’s unsolicited comment or response to a social media post convert lone-wolf conduct into concerted activity? Intermountain suggests that the concerted nature of the social media activity depends on both the intent of the original poster and the understanding of that intent by any subsequent commenters.

These issues are far from settled. Intermountain, though, is a good first step in the right direction to providing employers some much needed clarity in this area. It’s also a welcoming sign that the NLRB isn’t forging ahead with blinders on in this area.

NLRB trumps U.S. Supreme Court on class action arbitrations

Last year, the U.S. Supreme Court, in AT&T Mobility v. Concepcion, held that a business could compel a group of individuals to waive their right to file a class action lawsuit and instead arbitrate their collective dispute. Employers rejoiced, believing that they finally had the weapon they needed to battle the scourge of wage and hour class actions. Last Friday, however, the NLRB struck a blow against this apparent victory.

In D. R. Horton, Inc. [pdf], the NLRB held that an arbitration agreement violated the National Labor Relations Act’s protections for employee concerted activity. The facts are pretty straight-forward. The employer required all of its employees, as a condition of their employment, to sign a master arbitration agreement, under which they agreed:

• to submit all disputes and claims relating to their employment to final and binding arbitration;
• that the arbitrator “may hear only … individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding”; and
• to waive “the right to file a lawsuit or other civil proceeding relating to … employment with the Company” and “the right to resolve employment-related disputes in a proceeding before a judge or jury.”

The NLRB concluded that the agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and held that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”

A few key points to make about this case:

1. This case continues the trend (as we’ve seen in the social media cases—more on this tomorrow) of the NLRB pursuing protected, concerted activity cases in non-union workplaces.
2. The NLRB did not concluded that all class action arbitration agreements are invalid, but merely those that leave employees without a collective remedy. An arbitration agreement, for example, that permits for a judicial filing would still be lawful. (But, then again, wouldn’t that fall-back nullify any benefit to be gained from the arbitration agreement in the first place?)
3. This decision likely is not the last we will hear on this issue. This case is almost certainly headed to the 11th Circuit Court of Appeals. Depending on that result, it will be curious to see if the Supreme Court picks up the ball to reconcile this case with AT&T Mobility. Until then, employers should tread carefully in trying to implement or enforce class action arbitration agreements.

WIRTW #207 (the “world tour” edition)

Okay, so it’s not really a world tour, but I do have a bunch of speaking engagements coming up in the next few weeks, all but one of which you can join.

• At 2 pm this afternoon, you can call in and speak to me live on the special 100th installment of Stephanie Thomas’s Proactive Employer Podcast. I’ll be appearing along with fellow employment law bloggers Dan Schwartz and Phil Miles. If you want to participate, the call-in number is (347) 945-5651, or you can tweet your question using the hashtag #TPE100. You will be able to listen live here.
• On January 11, I will be presenting the inaugural webinar in the Ohio Chamber of Commerce’s HR Academy, entitled Think Before You Click: Strategies for Managing Social Media in the Workplace. The live webinar runs from 10 – 11:30 am.
• On January 18, I will be leading a session on how-to blog for the Ohio Women’s Bar Association Leadership Institute.
• On February 9, I am presenting Lawyers, Booze and Money: Social Media Compliance for Regulated Industries, at the Social Media Strategies Summit in Las Vegas.
• On February 21, I will be part of a webinar panel entitled Understanding Unions, NLRB, and Social Media. The panel will be part of a webinar series run by Jessica Miller-Merrell on her blog, Blogging4Jobs. More info to follow.
• Also, last month I recorded an episode of the Fistful of Talent Podcast (the CYA Report, with co-host Dawn Burke and Kris Dunn) discussing current issues with the NLRB. You can download the podcast here.

The blogosphere never sleeps, even over the holidays. It’s been a busy couple of weeks. Let’s get to it.

Here’s what I read this week (and last week):

Discrimination

• The EEOC’s wish list for reasonable accommodations – from Sindy Warren’s Warren & Hays Employment Law Blog
• Going on offense—responding to a potential ADA suit – from John Holmquist’s Michigan Employment Law Connection
• Breast-Feeding Avengers – from Eve Tahmincioglu’s CareerDiva
• A Get Over It Guide to Transgender in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs

Social Media & Workplace Technology

• Poetic Justice - 2011 Wrap Up – from Social Media Employment Law Blog
• Top Ten 2012 Social Media Resolutions Every Organization Should Have – from Social Axcess
• Are employees’ LinkedIn contacts considered your trade secrets? and Who owns the LinkedIn account you maintain for an employee? – from Eric Meyer’s The Employer Handbook Blog
• Do Your Social Media Accounts Belong To Your Business? Why Worry, When There Are Safeguards You Can Take Now – from Social Media Law Update
• Why Owning Your Employee’s Twitter Account is Foolish – from Social Media Today
• My Interview with @noahkravitz (Noah Kravitz) - How Much is a Twitter Follower Worth? – from Social Media for Law Firms
• SEC issues investor alerts highlighting the perils of social media – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Avoiding the Dangers of Social Media Background Checks – from i-Sight Investigation Software Blog
• Twitter, Anonymous, Occupy Wall Street, the First Amendment, and the Suffolk County district attorney – from The Verge

HR & Employee Relations

• Setting Precedents: What You Have Done Before Does Count – from Mike Haberman’s Omega HR Solutions
• Employment law leftovers: Best of 2011, what's up for 2012, and resolutions – from Robin Shea’s Employment and Labor Insider
• Things I Believe In – from The ChamberPost
• Sex Sells—And It’s A Trade Secret – from Fair Competition Law
• Employee Bathroom Surveillance Camera, Although Faulty, Could Be Invasion of Privacy – from Workplace Fairness
• Why You Really Shouldn’t Curse at Work (Much) – from Harvard Business Review
• Losing Your Driver’s License Can Impact Your Career – from hr bartender
• Workplace Rudeness Has a Ripple Effect – from Scientific American
• Ohio Court: Client List Was Not a Trade Secret – from The Personnel Files
• What Employers and Employees Should Understand About Conducting Background Checks from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Does Lady Gaga Owe Assistant OT? – from Wage & Hour Insights
• Lady Gaga’s Personal Assistant Sues for Overtime: “At Her Side” 24/7 – from Wage and Hour Law Update
• Get a Fresh Start on Misclassification in 2012 – from Stephanie Thomas at Compensation Cafe
• Can my company force me to take health insurance? – from Evil HR Lady, Suzanne Lucas
• Employee Not Owed Reporting Time or Split Shift Pay for Scheduled Meetings – from Wage & Hour Counsel
• The DOL’s FMLA Forms Expired on December 31, 2011. Should Employers Still Use Them? – from FMLA Insights
• Invalid FMLA certification can form the basis of employment termination – from Employment Law Matters

Labor Relations

• Just In: Obama Taps Three for NLRB Vacancies – from Phil Miles’s Lawffice Space
• President Obama Announces Three Recess Appointments to NLRB Despite Senate in Pro Forma Session and More on President Obama’s “Recess” Appointments to the NLRB – from Seth Borden’s Labor Relations Today
• NLRB’s New “Vote Now, Litigate Later” Union Election Rules To Become Effective April 2012 – from World of Work
• When is a Supervisor Not a Supervisor? The NLRB Finds No Proof of Supervisory Authority – from Vorys on Labor

Disability discrimination law in Ohio is a mess

Let’s start with the obvious: it is illegal in Ohio for an employer to discriminate against an employee because of the employee’s disability. It is not always easy to figure out who this proscription covers, because Ohio’s statute (R.C. 4112) and the federal statute (the ADA) have their own respective definitions of what is a disability, which vary slightly:

     Ohio Law:

“Disability” means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

     Federal Law:

The term “disability” means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

Before Congress amended the ADA in 2009, there existed another key difference between its and Ohio’s respective definitions of “disability.” To be “regarded as” disabled under Ohio law, one has to be “regarded as having a physical or mental impairment.” Under the pre-ADAAA ADA, to be “regarded as” disabled, one had to be perceived as having an impairment that substantially limits one or more major life activities. By adding the “substantially limits” language, the federal definition was more restrictive.

Until recently, and despite these differences, Ohio law has almost always looked to federal law in interpreting its state disability discrimination statute. Last month, however, the rules changed. In Scalia v. Aldi, Inc. (12/21/11) [pdf] (discussed yesterday), one Ohio appellate court said the following:

Because the plain language of the definition of disability contained in R.C. 4112.01 differs in substance from the ADA, it is not appropriate to look to federal materials interpreting the pre-2008 ADA with respect to perceived disability claims under Ohio law.

The key language in that quote is “pre-2008 ADA.” The ADAAA amended the definition of “regarded as” disability. Under the amended ADA, it is now irrelevant whether the actual or perceived physical or mental condition substantially limits a major life activity:

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Thus, as the court pointed out in Scalia v. Aldi, Ohio law and federal law now match on this issue. Because Aldi terminated Scalia before Congress amended the ADA, the court applied the pre-amendment version of the statute, and left open the question of whether Ohio courts should look to federal caselaw interpreting the amended federal statute.

What does all this mean for Ohio employers? Disability discrimination law is a mess. Until the General Assembly passes legislation clarifying whether interpretations of “disability” under R.C. 4112 are supposed to mirror the ADA, companies doing business in Ohio would be best served following the most expansive interpretation of the definition of disability possible under either statute.

Resolve this year to properly handle no-fault attendance policies

For the uninitiated, a no-fault attendance policy terminates an employee who accumulates a pre-designated number of absences, regardless of the reason. For employers with high-volume, high-turnover operations, these policies make a lot of sense as the best tool to manage employee attendance. They are not, however, without their risk. For example, no-fault attendance policies cannot penalize absences that fall under the protective umbrella of statutes such as the FMLA or the ADA. As some employers have discovered, disciplining or firing disabled employees under a no-fault policy can be a costly error.

What about employees on leave for a workers’ comp injury? Can an employer count those absence under a no-fault policy? According to one recent Ohio appellate decision—Scalia v. Aldi, Inc. (12/21/11) [pdf]—the answer is a decided maybe. The court concluded that it is not per se retaliatory for an employer to terminate an employee on workers compensation leave pursuant to a facially neutral attendance policy. The court remanded the case back to the trial court to consider the issue of whether the employer—through the application of its attendance policy— terminated the plaintiff retaliation for instituting, pursuing, or testifying in a workers’ compensation proceeding.

What does this mean? This means that the plaintiff cannot rely solely on the attendance policy to prove retaliation, but must prove that the employer’s reliance on the attendance policy was a pretext for retaliation. A uniformly applied attendance policy will go a long way to disproving this pretext. As mentioned above, however, employers cannot apply attendance policies to penalize employees on leave for FMLA or ADA reasons. Will this lack of uniformity hurt employers in defending against workers’ comp retaliation cases? Or, can an employer lawfully treat FMLA-related and ADA-related absences differently than workers’ comp-related absences. Another court will have to answer these questions in another case. As this case illustrates, employers must tread very carefully when disciplining or terminating an employee who is absent from work because of work-related injury.

Does India have sex discrimination laws?

I have no idea if India has workplace sex discrimination laws. The following classified ad would suggest not:



Does anyone know if this is legal in India? Do I need to tell you that it is the absolute opposite of a best practice to list a position as one for a “Lady Computer Operator … preferably married”?

[Hat tip: my wife]

Did anyone resolve to be less connected in 2012?

Available at http://www.gocomics.com/nonsequitur/2011/12/26

Happy New Year!

Best of 2011: Numbers 2 and 1

   2.  “If I could press a button and instantly vaporize one sector of employment law?”

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible…. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

   1. The Employer’s Bill of Rights

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees…. The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer’s Bill of Rights.

Best of 2011: Numbers 4 and 3

   4. Charlie Sheen and the National Labor Relations Board

CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

   3. NLRB says a “f**ktard” is different than a “d*ck” under Section 7

In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities?

Best of 2011: Numbers 6 and 5

   6. EEOC sues for disabled shoplifter

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first.

   5. The most important thing you need to know about the ADAAA’s regulations

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Best of 2011: Numbers 8 and 7

   8. What does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices.

   7. How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note…. Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies.

Best of 2011: Numbers 10 and 9

   10. Unstable employees, direct threats, and the ADA

Employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

   9. Wal-Mart v. Dukes does not equal barefoot and pregnant

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson…. So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

BREAKING NEWS: NLRB delays employee rights posting requirement until April 30

From the NLRB:

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

Merry Christmas!

WIRTW #206 (the “…and a happy New Year” edition)

Today marks the Blog’s last original post of 2011 (if you count a weekly summary as original content). Next week, I will run the 4th annual year-end countdown. In past years, I’ve counted down the top 10 labor and employment stories of that year. This year, I’ll be doing it a little differently. I’ll be recapping what I consider to be the best posts of 2011. Inevitably, we’ll hit some of the year’s biggest stories (social media, Wal-Mart v. Dukes, the EEOC, the ADA) too. What you’ll read, however, are the 10 pots of which I am the most proud from the past year, which will include some (but not all) of the year’s most newsworthy and important stories.

Everyone have a Merry Christmas, Happy Hanukkah, celebratory something else, and a safe New Year. I’ll be back on Tuesday, January 3, with brand new content for 2012.

In the meantime, if you want to give me an early Christmas present, cast your vote for the ABA Journal’s Blawg 100 (here to register, and here to vote). Thanks for your support.

Here’s what I read this week:

Discrimination

• Nothing good comes of forcing employees to go to brothels – from Eric Meyer’s The Employer Handbook Blog
• A GINA tip – from Warren & Hays Employment Law Blog
• Tempest in a flu shot: sex discrimination and religious preference – from John Holmquist’s Michigan Employment Law Connection
• Court Rules Severe Obesity Is a Disability Under the ADA – from Trade Secret / Noncompete Blog
• EEOC Performance in 2011, What it Could Mean for Employers in 2012 – from Employer Defense Law Blog

Social Media & Workplace Technology

• How to use Facebook Timeline – from The Verge
• Social Media E-Discovery: a New World of Proof – from i-Sight Investigation Software Blog
• Social Media: When Sociology and Technology Collide – from Blogging4Jobs
• Social-Media Woes for School Districts – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Discovery Odds Dropping in Pennsylvania – from Phil Miles’s Lawffice Space
• Another TSA Officer Leaves Personalized Note In Passenger’s Bag (After Finding Marijuana) – from Kashmir Hill’s The Not-So Private Parts
• Tis the Season to Tech the Workplace Halls - Managing Employee Owned Technology Devices – from Jason Shinn’s Michigan Employment Law Advisor
• Smartphones Stressing Employees Out, Employers Encouraging Smartphones – from Workplace Diva

HR & Employee Relations

• Don’t let that employee probationary period lull you into a false sense of security – from Robin Shea’s Employment and Labor Insider
• How to handle office party embarrassments – from Evil HR Lady, Suzanne Lucas
• Don’t Assume an Employee Knows the Rules – from Mike Haberman’s Omega HR Solutions
• Millennials don’t want 9 to 5 – from Gruntled Employees
• Summing Up 2011: Everything is Amazing and Nobody is Happy – from TLNT
• Right On, Jeb – from The ChamberPost
• Who Owns Your Customer Relationships: Your Salespeople or Your Company? – from Harvard Business Review

Wage & Hour

• The Danger In Docking The Pay of Exempt Employees – from Wage & Hour - Development & Highlights
• Minimum Wage, Overtime Requirements Extended to In-Home Care Workers in DOL Proposed Rule – from Wage & Hour Counsel
• Seventh Circuit Finds Employee’s “Work"”Not Compensable Due To Lack Of Employer Knowledge – from Wage and Hour Law Update
• Podcast: How Do Employers Calculate FMLA Leave Around the Holidays? – from FMLA Insights

Labor Relations

• ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case – from Labor Relations Counsel
• Obama NLRB Appointees Could Run Into Congressional Buzzsaw – from Joe’s HR and Benefits Blog
• Department of Interior at Odds With National Labor Relations Board Over NLRA Application to Indian Tribes – from Seth Borden’s Labor Relations Today

The NLRB flexes its rulemaking authority … and business groups flex right back

Yesterday, the NLRB announced that it had formally adopted a final rule amending its election case procedures. The rule is set to take effect April 30, 2012. Among other changes, this new rule significantly shortens the time between when a representation petition is filed and an election is held. For this reason, the rule is known as the “ambush election” rule. According to the NLRB, this new rule is intended to “reduce unnecessary litigation and delays.” In reality, it’s an alternate route to achieve higher union representation rates following Congress’s failure to pass the Employee Free Choice Act.

As quickly as the NLRB announced its adoption of the final rule, the U.S. Chamber of Commerce announced that it had filed a lawsuit in federal court seeking to block them. From the Chamber’s press release announcing the filing:

The Chamber’s lawsuit explains that the National Labor Relations Board’s final “ambush election rule” imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections.

This lawsuit joins two others that challenge a different aspect of the NLRB’s claimed rulemaking authority—its workplace rights poster, which is scheduled to become mandatory on January 31, 2012. In one of those cases, the assigned federal judge has asked the NLRB to delay its posting requirement to provide her more time to consider the challenge before her.

These are important issues that will affect all private sector employers, and which bear watching as they work their way through the court system. (Of course, if the Republican take back the White House in 2012, all of this administrative wrangling likely becomes moot).

A Hanukkah lesson for employers

The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.

I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.

Happy Hanukkah.

Sometimes it’s not all about the Benjamins: reinstatement in lieu of front pay

James McKelvey, an Army veteran, lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq. As if his physical injuries were not enough for him to endure, upon returning home to a civilian job in the Army, his co-workers subjected him to more than a year of disability-related harassment. For example, they repeatedly called him “lefty” and “cripple.” He resigned, believing the work environment was so hostile that he had no realistic option but to quit. He also sued for constructive discharge, for which a jury awarded him nearly $4.4 million in front pay.

In McKelvey v. Secretary of the United States Army (6th Cir. 12/14/11) [pdf], the court concluded that the trial judge was correct by taking the monetary verdict away, and instead ordering that McKelvey return to his Army job (albeit with improved working conditions and higher pay):

McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.

In this case, reinstatement was the court’s decision, not the employer’s. Nevertheless, it raises an interesting point. If you’ve been sued, and you’re reasonably confident that your company was in the wrong, and you are comfortable reintegrating a litigant into your workplace, don’t fail to consider an offer to bring the employee back to work. It’s called an “unconditional offer of reinstatement,” and when used correctly (with the right employee and in the right case), it is an extremely powerful tool. The key word is “unconditional.” The offer must be to the same or equal position, with equal (or better) pay and benefits, and with full back pay and restoration of other lost benefits. The benefits are several. Such an offer cuts of the employee’s entitlement to back pay or front pay, in addition to severely hampering one’s ability to prove a right to punitive damages.

Consider adding the “unconditional offer of reinstatement” to your quiver of litigation tools. It just might rescue a good employee from the litigation scrapheap, and save you a few dollars too.